Community and the Law

Community and the Law

A Critical Reassessment of American Liberalism and Japanese Modernity

Takao Tanase

Edited by Luke Nottage and Leon Wolff

This important book translates seven landmark essays by one of Japan’s most respected and influential legal thinkers. While Takao Tanase concedes that law might not matter as much in Japan as it does in the United States, in a provocative challenge to socio-legal researchers and comparative lawyers, he asks: why should it? The issue, he contends, is not whether law matters to society; it is how society matters to law.

Chapter 5: Rights and Community

Takao Tanase

Edited by Luke Nottage and Leon Wolff

Subjects: asian studies, asian law, law - academic, asian law, human rights, politics and public policy, human rights, social policy and sociology, sociology and sociological theory

Extract

1. AMBIVALENCE ABOUT RIGHTS The language of ‘rights’ is almost ubiquitous. From unimpeded access to natural light, a clean environment and smoke-free living, to privacy and selfdetermination, we increasingly assert our ‘rights’ to protect ourselves from what we think are unfair violations of our freedoms or personal interests. We hear ‘human rights’ discussed in the mass media on an almost daily basis. We subject the bureaucracy to more searching scrutiny by asserting our ‘right to know’. Yet despite this general acceptance of rights, we still steel ourselves before insisting upon our rights in real-life situations. This is because it feels awkward, if not outright uncomfortable, claiming our own rights or disclaiming the rights of others. Why are we ambivalent to rights? Is it due to an underdeveloped rights consciousness? Or perhaps self-interested opportunism, where we agree on the general principle but oppose its application in particular settings? I suspect something else is involved. To be sure, rights are worth protecting and we should expect new categories of rights to develop to safeguard new interests. Yet appeals to rights also have a destructive force: they interrupt the flow of everyday social interaction and create tensions in social relationships. Although influential scholars such as Kawashima (1982a, pp. 112–17) argue that rights assertion is essential to fostering a healthy respect for rights in society, this is not always true. Indeed, sceptics might point to the negative side to rights assertion – where asserting rights has little, if anything, to do with ensuring respect...

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